Bombay High Court
Smt. Fakrunnisa Begam Wd/O Mirza ... vs Sayyad Ali Hasan S/O Mir Haidar Ali ... on 3 November, 2017
Bench: Z.A. Haq
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
WRIT PETITION NO.6295/2013
1. Smt. Fakrunnisa Begam Wd/o Mirza Bakshish
Ali Baig, aged about 80 Yrs., Occu. Household,
R/o Farmanpura, Achalpur, Tah. Achalpur,
District - Amravati.
2. Smt. Kamalunissa Begam W/o Sarfaraz Hussain,
aged about 78 Yrs., Occu. Household,
R/o Kohekayam Hyderabad (A.P.)
3. Mirza Faiz Ali Baig S/o Mirza Maksud Ali Baig,
aged about 76 Yrs., Occu. Rted. Servant,
R/o Farmanpura, Achalpur, Tah. Achalpur,
District - Amravati.
3-i) Mirza Firoz Ali Baig S/o Mirza Faiz Ali Baig,
aged 45 Yrs., Occu. Driver.
3ii) Syda Sabina Fatema d/o Mirza Faiz Ali Baig,
aged about 48, Occu. Household.
3-i) and 3-ii) are R/o Farmanpura, Achalpur,
Tah. Achalpur, District - Amravati.
4. Smt. Ashrafunnisa Begam Wd/o Mir Joharali,
aged about 74 Yrs., Occu. Household, R/o Magar
Ki Bahuli, Hyderabad (A.P.)
5. Mirza Hasan Ali Baig S/o Mirza Maksud Ali Baig
(Dead) through His L.Rs.
5-a) Kaniz Haidar Wd/o Mirza Hasan Ali Baig,
aged about 53 Yrs., Occu. Household.
5-b) Mirza Hussain Ali Baig S/o Mirza Hasan Ali Baig,
aged about 29, Occu. Business.
5-c) Kaniza Zainab d/o Mirza Hasan Ali Baig,
aged about 33 Yrs., Occu. Household.
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5-d) Kaniza Zabera D/o Mirza Hasanali Baig,
aged 31 Yrs., Occu. Household.
All R/o H. No.22/A-1/154/155 Tamashkha
Pura, Kali Kabar, Darulshafa, Hyderabad.
6) Mirza Monisali Begam S/o Mirza Maksudali Baig,
aged about 70 Yrs., Occu. Retd. Servant,
R/o Zakir Husain Society, Wardha, Distt. Wardha.
7) Smt. Kaniz Fatema D/o Mirza Gulam Ali Baig,
aged about 37 Yrs., Occu. Service, R/o Ashrafpura,
Achalpur, Tah. Achalpur, Distt. Amravati.
Petitioner No.1 to 5 and 7 represented through
power of attorney holder Shri Mirza Monisali Begam
S/o Mirza Maksudali Baig i.e. petitioner No.6. ..Petitioners.
..Vs..
1. Sayyad Ali Hasan S/o Mir Haidar Ali,
aged about 62 Yrs., Occu. Agri.,
R/o Farmanpura, Achalpur, Tah. Achalpur,
District - Amravati.
2. Mir Ali Sabdar S/o Mir Haidar Ali,
R/o Ganesh Colony, Aurangabad,
Tq. & Distt. Aurangabad.
3. Mir Ali Asgar S/o Mir Haidar Ali,
aged about 52 Yrs., Occu. Agri.
4. Mir Ali Sajjad S/o Mir Haidar Ali,
R/o Darabganj Galli, Mata Ki Khidki,
Yakubpura, Hyderabad, Tq. & Distt.
Hyderabad (A.P.)
5. Mir Mohammad Ali S/o Mir Haidar Ali,
aged about 47 Yrs., Occu. Agri.
All 2 to 5 R/o Kharala, Tah. Chandurbazar,
Distt. Amravati.
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6. Mir Ali Karar Mir Ahmed Ali,
aged about 56 Yrs., Occu. Agri.,
R/o Kharala, Tah. Chandurbazar,
Distt. Amravati.
7. Sau. Archana Prafullakumar Satav,
aged about 32 Yrs., Occu. Household,
R/o Kharala, Tah. Chandurbazar,
Distt. Amravati. ..Respondents.
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Shri P.R. Agrawal, Advocate for the petitioners.
Shri N.R. Saboo, Advocate for respondent Nos.1, 3, 5 to 7.
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CORAM : Z.A. HAQ, J.
DATE : 3.11.2017.
ORAL JUDGMENT
1. Heard.
2. Rule. Rule made returnable forthwith.
3. The petitioners / original plaintiffs have challenged the order passed
by the trial Court by which the application (Exh. No.56) filed by the defendants
is allowed and the defendants are permitted to amend the written statement by
deleting the word "not" from last sentence of paragraph No.1 of additional
statement.
4. The contention of the petitioners is that under the garb of seeking
amendment to the written statement by deleting the word "not", the
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defendants are seeking to withdraw the specific case pleaded by them that
though the amount demanded by Mirza Gulam Ali Baig was paid by Mir Haidar
Ali, because of cordial relations between Mirza Gulam Ali Baig and Mirza
Haidar Ali formal document of gift was not executed.
5. Though the learned Advocate for the respondents supported the
impugned order contending that the incorporation of the word "not" in the last
sentence of paragraph No.1 of additional statement is a typographical error, on
examining the pleadings in paragraph No.1 of additional statement, I find that
it cannot be said to be a typographical error and if the defendants are
permitted to delete the word "not" from the sentence, the sentence will not
make any sense and it will have to be considered that the defendants pleaded
that the formal document of gift was executed. Apart from this, I find that the
learned trial Judge has overlooked the bar created by proviso below Rule 17 of
Order VI of the Code of Civil Procedure while considering the application filed
by the defendants seeking permission to amend the written statement. The
learned Advocate for the petitioners has pointed out that the application is filed
after the affidavit in lieu of evidence of plaintiff No.6 is filed on record. The
defendants have not exercised due diligence in the matter.
6. In view of the above, I find that the impugned order is
unsustainable.
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7. Hence, the following order:
(i) The impugned order is set aside.
(ii) The application (Exh. No.56) filed by the defendants is dismissed.
(iii) Rule made absolute in the above terms.
In the circumstances, the parties to bear their own costs.
JUDGE
Tambaskar.
